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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
) H.S. ) Civil Action No. 3:17-cv-01839 ) Plaintiff, ) vs. ) ) JURY TRIAL DEMANDED STROUDSBURG AREA SCHOOL ) DISTRICT and BRANDON W. ) SECOND AMENDED COMPLAINT FLATLEY ) ) JUDGE MUNLEY Defendants ) ) )
SECOND AMENDED COMPLAINT
1. Plaintiff H.S. alleges, while as a minor child in the Stroudsburg Area
School District (“District or SASD”), she was sexually harassed and molested by
Brandon W. Flatley (“Flatley”), a music teacher, and that, not only is Flatley liable for his actions, but Defendant School District is also liable under 20 U.S.C. §1681
(hereafter “Title IX”) and 42 U.S.C. §1983 for its inaction, policies and customs which made the harassment possible and probable, and for its deliberate indifference to H.S.’s right to be free from sexual harassment, a hostile learning environment, grooming and sexual molestation by professional teaching staff.
Plaintiff H.S. alleges that persons with authority at the Defendant School District acted with deliberate indifference despite actual knowledge of Flatley’s molestation and harassment and once Flatley was suspended and arrested, despite
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actual knowledge of the hostile educational environment she suffered from her peers, their parents, teachers and staff during the second half of her junior year and her entire senior year.
PARTIES
2. Plaintiff H.S. was under the age of 18 at the time the incidents described herein occurred.
3. H.S. was born on .
4. When not attending college, H.S. resides with her parents in
.
5. The Stroudsburg Area School District (“SASD”) is a political subdivision as that term is defined in the Political Subdivision Tort Claims Act
(“Tort Claims Act”), 42 Pa.C.S. §§ 8541-8542, organized pursuant to the laws of the Commonwealth of Pennsylvania and maintains its administrative offices at 123
Linden Street, Stroudsburg, Pennsylvania 18360.
6. The Stroudsburg Area School District (“SASD” or “District”) is governed under Pennsylvania law by an elected school board which develops the practice, procedure, policy and custom of the District to be implemented daily by an appointed superintendent and other school administrators.
7. The superintendent and other members of the administration work with the SASD School Board in proposing policy for adoption by the school board
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and in identifying areas and concerns to be addressed, and act as the “eyes and ears” of the SASD School Board on campus and in running the District on a daily basis through authority delegated by the Board and Pennsylvania law.
8. The practices, procedures, policies and customs of SASD, identified herein, were either expressly developed by the SASD school board, or established by the superintendent or other administrators, with the express delegation or acquiescence by the SASD school board.
9. Defendant Brandon W. Flatley was a full time, permanent music teacher employed by the District at the time the incidents described herein occurred.
JURISDICTION AND VENUE
10. This Court has subject matter jurisdiction over this case pursuant to 28
U.S.C. § 1331 over all civil actions arising under the Constitution, laws and treaties of the United States.
11. This Court also has subject matter jurisdiction pursuant to 28 U.S.C. §
1343, which gives district courts original jurisdiction over (a) any civil action authorized by law to be commenced by any person to redress the deprivation, under color of any State law, statute, ordinance regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within
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the jurisdiction of the United States; and (b) any civil action to recover damages or to secure equitable relief under any Act of Congress providing for the protection of the civil rights.
12. This Court also has supplemental jurisdiction over H.S.’s state law claims pursuant to 28 U.S.C. § 1367.
13. This is an action to redress the deprivation of H.S.’s constitutional rights under Title IX and 42 U.S.C. § 1983.
14. Venue is in the United States District Court, Middle District of
Pennsylvania, under the provisions of 28 USC § 1391(b) since the acts and omissions alleged herein were committed or omitted in the County of Monroe and
Middle District of Pennsylvania.
15. At all times material hereto, Defendants acted pursuant to or under color of state law.
MATERIAL FACTUAL ALLEGATIONS
16. The preceding paragraphs are incorporated by reference herein and made part hereof.
17. H.S. became Defendant Flatley’s student during the 2007 school year when she was in fourth grade and a student at Chipperfield Elementary School, also known as Stroudsburg Intermediate School. (“Chipperfield”).
18. Defendant Flatley was employed by the District as a full-time music
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teacher and the Junior High School Chamber Orchestra Director and the Pit
Director for the Stroudsburg High School Musicals.
19. At all times material hereto, Flatley maintained his classroom and office at Chipperfield.
20. In April, 2013, Defendant Flatley befriended H.S., age fifteen (15), on
Facebook.
21. Flatley began private messaging H.S. via Facebook during April, 2013 and in the process, sent her an audio clip of a song that he wrote.
22. From April, 2013 through December 24, 2014, Flatley and H.S. exchanged over 90,000 messages via Facebook and telephone text messaging.
23. The private messages sent by Flatley to H.S. through Facebook became sexual in nature when H.S. was approximately sixteen (16) years of age and a sophomore at Stroudsburg High School.
24. Many of the messages which Flatley sent H.S. included photos of him in his underwear, and multiple audio clips of Defendant Flatley telling H.S. about
“touching, kissing and tasting” her.
25. Defendant Flatley also sent various audio clips to H.S. which involved
Flatley moaning and masturbating, and telling H.S. that he is “ridiculously and utterly horny” for her.
26. During the private messaging, Defendant Flatley often told H.S. that
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he loved her.
27. Flatley often messaged H.S. when she awoke in the morning, throughout the day, and late into the night, on a daily basis.
28. In June, 2014, while H.S. was sixteen (16) years of age, Defendant
Flatley, using Facetime, communicated with the minor victim while he was in the shower and masturbated for her.
29. During the entire period that Defendant Flatley messaged H.S.,
Stroudsburg Area School District did not have a policy which prohibited any of the following:
a. Fraternization between students and professional staff, including
but not limited to teachers, outside of school hours, and off
school grounds;
b. Fraternization between students and professional staff, including
but not limited to teachers, outside of school hours, at their
homes;
c. Using social media to befriend and to communicate with
students on a private basis;
d. A policy prohibiting high school students from visiting
intermediate school teachers during school hours in their private
offices behind closed and locked doors; and,
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e. A policy generally prohibiting teachers from meeting with
students privately behind closed/locked doors in their offices.
30. Prior to the discovery of Flatley’s grooming and molestation of H.S., the District knew:
a. Teachers used social media to communicate with students, that
students were meeting teachers at their homes;
b. That teachers fraternized with students outside of school hours
and activities;
c. The District had disciplined teachers for having sexual
relationships with students and/or cooperated with local police
in the investigation of alleged teacher misconduct toward
students;
d. National media and professional journals all recommended that
school districts amend their policies considering the increased
incidence of professional staff engaging students in social media
and sexual activity and or grooming;
e. Other school districts in Monroe County, in response to the
popularity of social media and the danger of sexual predators
like Flatley engaging in predatory behavior toward students, had
amended their policies to prohibit teachers using social media to
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communicate with students and from fraternizing with at their
homes or elsewhere after school hours in non-school related
activities; and
f. Other school districts had to discipline teachers for sexual
relationships with students and other misconduct because of
fraternization and use of social media to communicate and to
groom students for the purpose of engaging with minor students
in sexual intercourse and acts; and
g. Local police and prosecutorial authorities had prosecuted
teachers for sexual relationships with students and other
misconduct because of fraternization and use of social media to
communicate and “to groom” students to engage with minor
students in sexual intercourse and acts; and
h. Children who are sexually molested and harassed by teachers
rarely come forward to report the abuse and when they do, are
often victimized a second time by peer ostracism and criticism
particularly where the offending teacher is popular; and
i. Children who are sexually molested and harassed by teachers
must be monitored and counseled to ameliorate the damage they
may suffer, remind them that they are victims and that they did
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nothing wrong to invite or cause their abuse by an adult teacher.
31. Despite the foregoing circumstances including but not limited to actual knowledge of teacher-student grooming, sexting and sexually predatory behavior, the District deliberately chose not to amend its policies, or to implement practices and procedures to protect a minor female student from teacher sexual abuse or the fallout and harassment the minor female student would suffer from her peers and others in the school community upon discovery of the abuse.
32. This failure encouraged and condoned fraternization and the use of social media by teachers to communicate and groom students for sexual purposes.
33. On multiple dates between October, 2014 through December, 2014,
H.S., while unsupervised for swim practice, would visit Defendant Flatley at his classroom and office at Chipperfield where Flatley would penetrate her with his fingers and his tongue, in his closed door office at Chipperfield School, during school hours.
34. During the time Defendant Flatley was having sexual contact with
H.S., H.S. was not a student at Chipperfield.
35. H.S was a member of the High School swim team and practice was held on the Chipperfield campus.
36. Students on the High School Swim team were permitted inside
Chipperfield after the High School dismissed for the day, leaving students
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unsupervised at Chipperfield for over thirty (30) minutes before swim practice began.
37. Upon arrival at Chipperfield, H.S. would immediately go to Flatley’s classroom in the basement and sit in the back of his classroom while he taught his final class of the day.
38. Teachers, supervisors, coaches and school security personnel knew that H.S. was visiting Flatley in his classroom during Chipperfield school hours.
39. On at least one occasion, a school security guard escorted H.S. to
Flatley's classroom. Flatley informed H.S. on at least one occasion that the hallways leading to his office and classroom did not have surveillance cameras.
40. Other students at SASD noticed the special attention that Flatley gave to H.S.
41. Teachers at SASD knew that H.S. was visiting Flatley’s classroom and office, that she was not a student at Chipperfield and that she had no business visiting Flatley at the school or visiting Flatley’s classroom and office..
42. H.S. was repeatedly and routinely late for swim practice yet her coaches took no action other than to remind H.S. that she had to be on time.
43. On several occasions while H.S was a cast member in the High
School musical, H.S. and Flatley were seen sitting next to each other during practices and talking by the School’s Musical Director and Orchestra Director.
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44. After one High School musical performance in April of 2014, Flatley hugged and kissed H.S on the cheek while in the pit room.
45. On another occasion, H.S. was at the High School setting up for a craft and music festival in the gym, when she and Flatley left the gym and went to a secluded back stage area in the school auditorium where there were no surveillance cameras.
46. Flatley performed oral sex on H.S. in the auditorium.
47. In November 2014, while schools were closed for parent-teacher conferences, Defendant Flatley went to H.S’s house prior to his scheduled parent meetings and while H.S’s parents were at work, where they engaged in oral intercourse.
48. In December 2014, Defendant Flatley again came to H.S.’s house while her parents were at work and engaged in oral sexual intercourse with H.S.
49. Finally, on or about December 23, 2014, H.S.’s mother discovered messages Flatley had sent to H.S. and immediately notified John Toleno, the
School Superintendent.
50. After notifying the Superintendent, H.S. and her parents met with the
Superintendent John Toleno.
51. H.S.’s parents were assured by Toleno that H.S.’s identity would be safeguarded and she would be monitored and counseled to lessen any adverse
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psychological impact her relationship with Flatley would cause.
52. Toleno also admitted that “sexting” or inappropriate social media contact by staff with students in the District was a problem and that an assistant football coach and substitute teacher had recently been involved in similar incidents.
53. Flatley was suspended after H.S.’s mother discovered the messages and met with Toleno.
54. Despite the representations made by Toleno to H.S.’s parents that her identity would be protected, and she would be monitored and counseled to lessen any adverse psychological impact her relationship with Flatley would cause, the suspension was widely reported in the local broadcast and print media identifying
Flatley as having been suspended and under active police investigation.
55. Although Flatley was suspended and under active police investigation, he was not immediately arrested.
56. Due to the notoriety of H.S. visiting with Flatley in his classroom and office, and the attention and affection which Flatley showed H.S., students and teachers openly discussed H.S. had to be the student Flatley had been involved with.
57. H.S. was questioned by teachers and students whether in fact, she was
“the one” since it was obvious to all, based upon her interaction with Flatley, that
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she was the student Flatley molested.
58. H.S. repeatedly denied that she was the student Flatley was involved with, since the questioning was hostile and accusatory insinuating that the “girl” was responsible and had victimized a fine teacher and family man.
59. H.S. was told by a teacher that teachers and staff openly discussed her involvement with Flatley with other staff and students.
60. Flatley was arrested on or about January 15, 2015 and the arrest was widely reported in the local media including an allegation that Flatley had sex with the student on school property.
61. The arrest captivated the school community and as a result of
Flatley’s popularity and continuing gossip by teachers, staff, students and parents,
H.S. was shunned, called a “slut”, “home wrecker” and other names.
62. After the arrest was reported in the Pocono Record, comments were posted online by readers specifically identifying H.S. as the student, increasing her notoriety and subsequent harassment at school.
63. The open hostility towards H.S. expressed by students, their parents and teachers, caused her to stop riding the school bus and to eat lunch alone.
64. H.S.’s mother contacted her school principal to express concerns for her daughter’s emotional state after Flatley’s arrest and although the principal said he would check up on H.S., he never did.
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65. Despite what Superintendent Toleno told H.S.’s mother upon the discovery of Flatley’s messages and his relationship with H.S. that she would be monitored and counseled, SASD offered no counseling to H.S. and failed to direct staff to monitor and help H.S. deal with the fallout of the relationship or the environment Flatley’s suspension and arrest had caused.
66. The District did not act proactively to meet with students or the student body to quell their open hostility to H.S. or to counsel them that H.S. was a child and a victim and that she did nothing to cause her molestation by Flatley.
67. The District did not make any effort to lessen the harassment suffered by H.S. following Flatley’s arrest, which caused the harassment to increase and become more flagrant, a fact known to those in the District who had the power and authority to correct the harassment and hostility suffered by H.S. at the hands of her peers, their parents, teachers and staff.
68. The harassment and isolation suffered by H.S. lasted the remainder of her junior year and her entire senior year.
69. In addition to her not riding the bus to school and her need to eat lunch alone, all of which was known by SASD administration, faculty and staff,
H.S. was the only senior whose picture did not appear in the senior yearbook, a
District sponsored and supervised activity.
70. The failure to publish her picture was the culmination of the campaign
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of harassment which H.S. suffered which the District’s administration allowed to continue unabated after Flatley was arrested and H.S. was discussed and accused as the student with whom Flatley was involved.
71. The failure to publish her picture thereby treating her differently from all other seniors could not have been accomplished without the active participation, connivance and cooperation of students involved in the activity, faculty and administration.
72. Rather than monitor and counsel H.S. to ensure her distress and psychological harm would be minimized, those in the District who had the power and authority to correct the harassment and hostility suffered by H.S. were more interested in protecting Flatley’s reputation as a teacher and “family man” rather than ameliorating the harm H.S. suffered from being molested by Flatley.
73. H.S. graduated from Stroudsburg High School in June, 2015.
74. Flatley was prosecuted criminally for his molestation of H.S. and entered a plea to Institutional Sexual Assault and to Unlawful Contact with a
Minor, both Felonies, and on July 20, 2015, was given a state prison sentence of not less than thirty-six months to not more than seventy-two months.
75. H.S. became eighteen (18) on
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CAUSES OF ACTION Count One -- Violation of Title IX and Sexual Harassment under the Fourteenth Amendment
76. The foregoing paragraphs are incorporated by reference herein and made part hereof.
77. To succeed on a Title IX sexual harassment claim, a student must show: (1) quid pro quo sexual harassment, or a sexually hostile educational environment; (2) actual notice by an “appropriate person” who has the authority to take corrective measures; and, (3) a response to the harassment that amounts to deliberate indifference.
78. Regardless of whether appropriate persons with authority actually knew of the sexual relationship between Flatley and H.S. before H.S.’s mother reported Flatley’s “sexting” and sexual relationship to Superintendent Toleno in
December, 2014, SASD through its administration, faculty and staff, all persons with authority, knew the harassment, shunning and insults which H.S. underwent for a year and one half following her mother’s meeting with Toleno and the widespread reporting of Flatley’s suspension and later arrest.
79. SASD created and/or following knowledge by appropriate persons with authority to resolve the issue and prevent further harm, permitted a hostile educational environment to exist, all in violation of Title IX of the Education
Amendments of 1972, 20 U.S.C. §1681(a) et. seq. (hereinafter “Title IX”) due to:
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a) H.S. was a minor and member of a protected class;
b) H.S. was subjected to sexual harassment in the form of sexual
contact/conduct from a teacher, Brandon Flatley in a manner which
was open and notorious;
c) Following the discovery of the sexual relationship by which H.S. had
with Flatley by H.S.’s mother and her telling Superintendent Toleno
what she had found, H.S. was subject to name calling and social
rejection by students, shunning and criticism that she, not Flatley, was
the cause of Flatley’s molestation of her;
d) The harassment was based on her sex;
e) The sexual harassment unreasonably interfered with her school
performance and created an intimidating, hostile and offensive
educational environment that severely affected her psychological
well-being;
f) The discrimination was pervasive and regular both during Flatley’s
misconduct and did not abate when her mother told Superintendent
Toleno what she had discovered about the relationship; and,
g) The discrimination was so pervasive that H.S. could no longer ride the
school bus and had to eat lunch alone as a result of the way she was
treated by teachers, students, parents and staff; and
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h) The discrimination and harassment was known by the Administration,
School Board, Faculty and staff; and
i) Despite the Superintendent telling H.S.’s mother that H.S. would be
monitored and counseled, no monitoring or counseling was offered;
and
j) The discrimination and harassment was allowed to continue unabated
for a semester and one-half and culminated in H.S.’s picture being
excluded from the senior yearbook, an official school sponsored
activity, which could not be accomplished without the active
participation, connivance and cooperation of students, faculty and
administration; and
k) The discrimination would have detrimentally affected any reasonable
person in H.S.’s position.
80. SASD administrators and professional staff had actual knowledge of the misconduct of Flatley and the social rejection/harassment of H.S. by students, their parents, teachers and staff and had authority to institute corrective measures on behalf of SASD after Toleno was told by H.S.’s mother of the relationship but were deliberately indifferent to Flatley’s misconduct and the social rejection/harassment of H.S. by students, their parents, teachers and staff, allowing instead for H.S. to be victimized a second time by her peers, their parents, teachers
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and staff.
81. Defendant SASD’s administrators and professional staff had the authority to take measures to prevent and/or end the discrimination and sexual harassment of Plaintiff yet failed to take any action.
82. Defendant SASD’s administrators and professional staff had the authority to take measures to monitor and counsel H.S. to prevent her from becoming a pariah, from being victimized a second time or otherwise further harassed and damaged yet failed to take any action to ameliorate the hostile educational environment she suffered during the remainder of her junior year and entire senior year after her mother reported the discovery of the relationship to
Superintendent Toleno in December, 2014.
83. As a direct and proximate result of the actions of SASD, H.S. suffered violations of her rights under Title IX and the Fourteenth Amendment to the U.S.
Constitution including but not limited to her right of personal security and personal bodily integrity, and sexual harassment.
84. Title IX and the Fourteenth Amendment places on public school systems the duty not to discriminate against students based on sex and the duty to protect students from intentional discrimination, including sexual harassment or abuse, by teachers and students.
85. At all times relevant herein, Defendant Flatley’s conduct toward H.S.
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constituted sexual harassment or abuse amounting to prohibited sex discrimination under Title IX and the Fourteenth Amendment.
86. H.S. was seen by District teachers, staff and students visiting Flatley in his classroom and office at the Intermediate School during school hours where
Flatley and H.S. repeatedly engaged in sexual acts.
87. The District should have known that it would be obvious to all that
H.S. was the student molested by Flatley.
88. At all times relevant herein, the Defendant District acted with deliberate indifference because its response to reports of Defendant Flatley’s misconduct and fraternization with H.S. at the Intermediate School and in public, during and after school hours, was clearly unreasonable since there had been prior instances of teacher fraternization/sexual misconduct with students in the District.
89. At all times relevant herein, in addition to Intermediate and High
School staff, one or more officials of Defendant School District with the authority to take corrective measures had actual notice of sexual harassment of students, including H.S., by Defendant Flatley, and said official(s) acted with deliberate indifference sufficient to impose Title IX liability on Defendant School District as a recipient of federal education funding.
90. At all times relevant herein, the Defendant District acted with deliberate indifference because its response to the hostility, name calling and social
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rejection of H.S. by other students, their families, teachers and staff after her mother reported the discovery of the relationship to Superintendent Toleno in
December, 2014 was clearly unreasonable and increased the emotional distress and psychological harm suffered by H.S.
91. SASD ‘s inaction after H.S.’s mother reported the discovery of the relationship to Superintendent Toleno in December, 2014 tacitly encouraged and approved the continuing gossip, harassment, shunning and hostility of H.S. by her peers, their parents, teachers and staff.
92. SASD’s duty to safeguard H.S. from discrimination included a duty under Title IX and the Fourteenth Amendment not to allow a pervasive, hostile environment subsequent to the discovery of Flatley’s molestation to develop regardless of whether there was actual knowledge that Flatley was sexually molesting H.S. before her mother discovered text messages and other information about their sexual relationship and told Superintendent Toleno of the discovery.
93. When informed by H.S.’s mother of her discovery of the relationship,
SASD, Superintendent Toleno admitted the District had experienced other similar incidents and cited an assistant football coach and substitute teacher who had engaged in similar activity.
94. The District’s reaction to the prior incidents and the instant molestation of H.S. by Flatley, and her subsequent treatment and harassment of
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once H.S.’s mother told Toleno of the molestation and the release of the information to the newspaper and other media, evidences a design and intention to discourage and dissuade students and parents of students who had been victimized by sexual discrimination or harassment from seeking protection and minimizing the nature and effects of serious incidents to which female students had been subjected.
95. This policy, practice and/or custom constituted disparate treatment of females and had a disparate impact on female students.
96. The District had a duty to safeguard and ensure survivors of teacher- minor student sexual assault and molestation be protected and not victimized a second time by teachers, staff, students, and parents through gossip, accusation, insults, harassment, isolation and open hostility.
97. The District had a duty to make sure the entire school community knew H.S. was a victim and had done nothing, as a female child, to make her responsible for Flatley’s molestation and sexual discrimination.
98. The District’s inaction, considering its knowledge of the harassment of H.S. by teachers, staff, students, and parents, constitutes deliberate indifference to the pervasive hostile environment H.S. suffered once her molestation was reported by her mother to Superintendent Toleno and was published by the media.
99. As a direct and proximate result of the actions of SASD, H.S. suffered
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and will continue to suffer severe and permanent psychological damage and emotional distress.
100. As a direct and proximate result of the actions of SASD , H.S. suffered physical harm and suffered and will continue to suffer emotional distress.
101. As a direct and proximate result of the actions of SASD and all other
Defendants, H.S. suffered and will continue to suffer violations of her rights under the Fourteenth Amendment to the U.S. Constitution.
102. As a direct and proximate result of these violations, H.S. incurred attorney fees and costs associated with this matter.
103. As a direct and proximate result of said sexual harassment, H.S. was subjected to a hostile school environment.
104. As a direct and proximate result of said sexual harassment, H.S. suffered significant psychological harm and was forced to endure extreme mental and emotional distress, all of which continues to this day and is expected to continue.
Count Two – Individual Liability (Defendant Flatley) Violation of Personal Security and Bodily Integrity 42 U.S.C. § 1983; Sexual Harassment
Fourteenth Amendment to the United States Constitution
105. The foregoing paragraphs are incorporated by reference herein and
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made part hereof.
106. Pursuant to the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, H.S. had the right, as a minor and public-school student, to personal security and personal bodily integrity.
107. Under the Due Process Clause of the Fourteenth Amendment to the
U.S. Constitution, H.S. had the right to be free from invasion of her personal security and sexual harassment at the hands of public school employees such as the
Defendant Flatley.
108. Flatley, as an employee of SASD, and acting under color of state law, violated the rights of H.S., a minor public-school student, to receive personal security and bodily integrity by making a series of sexual advances, exerting psychological coercion to overcome her will and engage her in a sexual relationship as a result of his professional position.
109. As a direct and proximate result of Flatley’s actions, H.S. suffered and will continue to suffer severe and permanent psychological damage and emotional distress.
110. As a direct and proximate result of the actions of Defendant Flatley,
Plaintiff suffered physical harm and suffered and will continue to suffer emotional distress.
111. As a direct and proximate result of Flatley’s actions, H.S. was
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deprived of her rights under the U.S. Constitution.
Count Three – Municipal Liability (Defendant Stroudsburg Area School District) U.S.C. § 1983
112. The foregoing paragraphs are incorporated by reference herein and made part hereof.
113. At all times relevant to this Complaint, Defendant Flatley, teachers and staff were acting under the District’s direction and control, through its duly elected School Board, its officers, superintendent and administrators, who were responsible for establishing and carrying out the District’s policy on a daily basis, and at all times, Defendant Flatley teachers and staff were acting, pursuant to either official policy or the practice, custom, and usage of the District and its School
Board, which did not prohibit:
a) Fraternization between students and professional staff, including but
not limited to after school hours, and off school grounds;
b) Fraternization between students and professional staff, including but
not limited to teachers after school hours and at their respective
homes; using social media to befriend and to communicate with
students on a private basis; and,
c) Visitation by high school students at Chipperfield during school hours
in classrooms and private offices behind closed and locked doors.
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114. At all times relevant to this Complaint, the District:
a) Failed to implement mandatory reporting by staff members to school
officials and/or child protective services and/or law enforcement when
witnessing inappropriate or suspicious interactions between school
staff and students;
b) Failed to properly supervise students while on school grounds;
c) Failed to properly supervise professional staff while on school
grounds; and,
d) Failed to institute policies designed to protect students despite other
instances of fraternization, grooming and sexual molestation and
abuse by professional staff, admitted by the Superintendent to H.S.’s
mother when she reported her discovery of the relationship, which
occurred before Flatley’s grooming, sexual involvement and
molestation of H.S.
e) The sexual harassment unreasonably interfered with her school
performance and created an intimidating, hostile and offensive
educational environment that severely affected her psychological
well-being;
f) Ignored the harassment suffered by H.S. after her mother told
Superintendent Toleno what she had discovered about the
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relationship; and,
g) Ignored that H.S. could no longer ride the school bus and had to eat
lunch alone as a result of the way she was treated by teachers,
students, parents and staff; and
h) The discrimination and harassment was known by the Administration,
School Board, Faculty and staff; and
i) Despite the Superintendent telling H.S.’s mother that H.S. would be
monitored and counseled, no monitoring or counseling was offered;
and
j) The discrimination and harassment was allowed to continue unabated
for a semester and one-half and culminated in H.S.’s picture being
excluded from the senior yearbook, an official school sponsored
activity, which could not be accomplished without the active
participation, connivance and cooperation of students, faculty and
administration.
115. H.S.’s parents were assured by Toleno that H.S.’s identity would be safeguarded and she would be monitored and counseled to lessen any adverse psychological impact her relationship with Flatley would cause.
116. Toleno also admitted that “sexting” or inappropriate social media contact by staff with students in the district was a problem and that an assistant
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football coach and substitute teacher had recently been involved in similar incidents.
117. The District’s reaction to the prior incidents and the instant molestation of H.S. by Flatley, and her subsequent treatment and harassment of
H.S. by teachers, students, parents and staff, once her mother told Toleno of the molestation and the release of the information to the newspaper and other media,
,evidences a design and intention to discourage and dissuade students and parents of students who had been victimized by sexual discrimination or harassment from seeking protection and minimizing the nature and effects of serious incidents to which female students had been subjected.
118. Defendant SASD’s policy, practice and custom condoned, and tacitly authorized unsupervised contact and fraternization by staff and student relationships and the belief that the minor student was at fault and had in fact victimized a popular adult teacher and is the legal and proximate cause of the harm, grooming, sexual molestation, harassment, shunning and discrimination H.S. suffered by Defendant Flatley and others once the relationship had become widely known.
119. As a direct and proximate result of the actions and inactions of SASD,
H.S. suffered and will continue to suffer severe and permanent psychological damage and emotional distress.
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120. As a direct and proximate result of the actions of SASD, and all other
Defendants, H.S. suffered physical harm and suffered and will continue to suffer emotional distress.
Count Four – Municipal Liability/Failure to Train/Supervise (Defendant Stroudsburg Area School District) 42 U.S.C.§1983
121. The foregoing paragraphs are incorporated by reference herein and made part hereof.
122. When informed by H.S.’s mother of her discovery of the relationship,
SASD, Superintendent Toleno admitted the District had experienced other similar incidents and cited an assistant football coach and substitute teacher who had engaged in similar activity.
123. SASD’s duty to safeguard H.S. from discrimination included a duty under Title IX not to allow a pervasive, hostile environment subsequent to the discovery of Flatley’s molestation to develop regardless of whether there was actual knowledge that Flatley was sexually molesting H.S. before her mother discovered text messages and other information about their sexual relationship and told Superintendent Toleno of the discovery.
124. The District had a duty to safeguard and ensure survivors of teacher- minor student sexual assault and molestation be protected and not victimized a second time by teachers, staff, students, and parents.
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125. The District had a duty to make sure the entire school community knew H.S. was a victim and had done nothing, as a female child, to make her responsible for Flatley’s molestation and sexual discrimination.
126. The District’s inaction, in light of its knowledge of the harassment of
H.S. by teachers, staff, students, and parents, and the promise Superintendent
Toleno made to H.S. and her parents that her identity would be protected and that she would be monitored and counseled to lessen the damage and trauma caused by
Flatley, constitutes deliberate indifference to the pervasive hostile environment
H.S. suffered once her molestation was reported by her mother to Superintendent
Toleno and was published by the media.
127. Defendant Stroudsburg Area School District had power to discipline and supervise teachers and professional staff and intentionally, knowingly or with deliberate indifference to the rights of Plaintiff H.S., failed or refused to do so despite actual knowledge of their participation in the harassment, hostility and isolation of H.S..
128. Defendant Stroudsburg Area School District, directly or indirectly, under color of law, approved, ratified or condoned the unlawful, deliberate, malicious, reckless, and wanton conduct of Defendant Flatley, heretofore described, and the harassment, hostility and isolation of H.S. once his suspension and arrest were widely reported.
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129. In light of the prior instances admitted by the Superintendent to H.S.’s mother in December, 2014, the need to train, supervise, control, and/or discipline
Defendant SASD’s teachers, staff and professional employees’ use of social media and private contact with students was so obvious that Defendant SASD’s failure to do so illustrates deliberate indifference to the rights of Plaintiff H.S., a minor.
130. In light of the prior instances admitted by the Superintendent to H.S.’s mother in December, 2014 and the national trend and recommendation for model policies concerning the use of social media and fraternization of professional staff the need to train, supervise, control, and/or discipline Defendant SASD’s teachers, staff and professional employees’ use of social media and private contact with students was so obvious in light of that Defendant SASD’s failure to do so illustrates deliberant indifference to the rights of Plaintiff H.S.
131. The need to train, supervise, control, and/or discipline Defendant
SASD’s teachers and staff, that H.S. was a child and a victim, and that she did nothing to cause her molestation by Flatley, was so obvious, that the failure to control, correct, advise and/or discipline teachers who openly talked among themselves and with students concerning H.S.’s fault and responsibility in causing
Flatley’s fall, is deliberate indifference to H.S.’s molestation, harassment by students, parents and staff, and H.S.’s right to be free from sexual harassment and discrimination.
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132. The District’s reaction to the prior incidents and the instant molestation of H.S. by Flatley, and her subsequent treatment and harassment once
H.S.’s mother told Toleno of the molestation and the release of the information to the newspaper and other media, evidences a design and intention to discourage and dissuade students and parents of students who had been victimized by sexual discrimination or harassment from seeking protection and minimizing the nature and effects of serious incidents to which female students had been subjected.
133. As a direct and proximate result of the actions of SASD, H.S. suffered and will continue to suffer severe and permanent psychological damage and emotional distress.
134. As a direct and proximate result of the actions of SASD, and all other
Defendants, H.S. suffered physical harm and suffered and will continue to suffer emotional distress.
135. As a direct and proximate result of the actions of all Defendants, H.S. suffered physical harm and has suffered and will continue to suffer emotional distress.
Count Five – Individual Liability (Defendant Flatley) Common Law-Assault, Battery and Intentional Infliction of Emotional Distress
136. The foregoing paragraphs are incorporated by reference herein and made part hereof.
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137. Flatley engaged in harmful and offensive contact with H.S. which was intended to cause H.S. to suffer physical and emotional distress through an inappropriate sexual relationship with a minor and a student.
138. Because Flatley was H.S.’s teacher, H.S. could not legally consent to engage in the contact and her cooperation was induced by Flatley’s position, trust and psychological coercion which overcame any unwillingness by H.S. to participate in sexual acts and contacts with Flatley.
139. As a direct and proximate result of the actions and inactions of all
Defendants, H.S. suffered physical harm and has suffered and will continue to suffer emotional distress.
PRAYER FOR RELIEF
WHEREFORE, plaintiff asks for the Court to enter judgment in her favor and against Defendants and to:
a) Award her general and compensatory damages;
b) Award her punitive damages against all parties where permitted by
law;
c) Award her reasonable attorney’s fees, and the costs of this
litigation, as well as such interest as is allowable by law; and,
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d) Provide such other relief as this Court deems just and equitable.
Respectfully Submitted,
CRAMER, SWETZ, McMANUS & JORDAN, P.C.
By: s:/James A. Swetz James A. Swetz, Esquire Attorney ID No. 23473 711 Sarah Street Stroudsburg, PA 18360 (570) 421-5568 Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
I, James A. Swetz, Esquire, of Cramer, Swetz, McManus & Jordan, P.C.,
Attorneys for Plaintiff, hereby certify that on October 13, 2018, I served a copy of the foregoing by electronic delivery on all parties eligible to receive service electronically through the Court’s ECF system.
and by United States Mail First Class, Postage Pre-paid to Defendant Flatley’s last known addresses:
Brandon W. Flatley 1210 Kennedy Ave. Duquesne, PA. 15110
Respectfully Submitted,
CRAMER, SWETZ, McMANUS & JORDAN, P.C.
By: s:/James A. Swetz James A. Swetz, Esquire Attorney ID No. 23473 711 Sarah Street Stroudsburg, PA 18360 (570) 421-5568 Attorneys for Plaintiff
S:\Jim's Files\Sury, Hope\Amended Complaint.Pleadings thereafter\FinalSecond Amended Complaint.docx
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